Proposed Jury Instructions for Forgery and Uttering

NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).

FORGERY

______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Forgery . One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Forgery; and (2) not guilty.
    Forgery is committed when any person knowingly and falsely makes, alters or forges a writing or instrument with the intent to defraud another person, and that the writing or instrument made, altered or forged would as made, altered or forged be of such a nature, if it were genuine, prejudice the legal rights of another person.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Forgery, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.     The Defendant, ______________________________,
2.     in __________________ County, West Virginia,
3.     on or about the _____ day of ________________, 199__,
4.     did knowingly and falsely,
5.     (make) (alter) (forge),

6.     a (writing) (instrument), to-wit:_____________________________________________
7.     to prejudice the legal rights of _________________________________,
8.     with the intent to defraud.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Forgery, you may find ______________________________ guilty of Forgery as charged. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Forgery, you shall find the Defendant ______________________________ not guilty.

COMMENT

FORGERY


1.     W.Va. Code, §61-4-5.
2.     State v. Lotono, 62 W.Va. 310, 58 S.E. 621 (1927). Defines and discusses the elements of forgery.
3.     State v. Austin, 93 W.Va. 704, 117 S.E. 607 (1923). The accused in forging an instrument must have in mind at the time of the making of the instrument the intent to defraud.
4.     State v. Talip, 90 W.Va. 632, 111 S.E. 601 (1922). The instrument forged, if true, would have the affect of prejudicing the legal rights of another person.

UTTERING OR ATTEMPTED UTTERING

______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Uttering . One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Uttering; and (2) not guilty.
    Uttering is committed when any person utters and employs as true a forged writing or instrument knowing at that time it to be forged with intent to defraud another person to the prejudice of another person's legal rights.
    Attempted Uttering is committed when any person attempts to utter and employ as true a forged writing or instrument knowing at that time it to be forged with intent to defraud another person to the prejudice of another person's legal rights.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of (Uttering) (Attempted Uttering), the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in __________________ County, West Virginia,
3.      on or about the _____ day of ________________, 199__,

4.      did (utter and employ as true) (attempt to utter and employ as true),
5.      a describe writing ____________________________________,
6.      which the Defendant ______________________________ knew at that time of the uttering to be forged,
7.      to prejudice the legal rights of ________________________________,
8.      with the intent to defraud.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of (Uttering), (Attempted Uttering) you may find ______________________________ guilty of (Uttering) (Attempted Uttering) as charged. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of (Uttering) (Attempted Uttering), you shall find the Defendant ______________________________ not guilty.

COMMENT

UTTERING OR ATTEMPTED UTTERING


1.      W.Va. Code, §61-4-5.
2.      State v. Nichols, 177 W.Va. 483, 354 S.E. 2d 415 (1987); State v. Viquesney, 103 W.Va. 392, 137 S.E. 538 (1927). These cases contain a discussion of the elements of uttering.
3.      State v. Austin, 93 W.Va. 704, 117 S.E. 607 (1923). The passing of a check alleged to be forged is a strong circumstance to be considered as proof of intent to defraud.
4.      State v. Talip, 90 W.Va. 632, 111 S.E. 601 (1922). The instrument forged, if true, would have the affect of prejudicing the legal rights of another person.